NLRB General Counsel Issues Sweeping Challenge to Non-Compete Agreements

June 1, 2023

By Thomas G. Eron and Pamela S. Silverblatt

On May 30, 2023 the National Labor Relations Board (NLRB or the Board) General Counsel issued a memorandum advancing the position that non-compete agreements between employers and employees, which limit employees from accepting certain jobs at the end of their employment, interfere with employees’ rights under Section 7 of the National Labor Relations Act (the Act). The memo, which is the latest pronouncement in an aggressive agenda to curtail established management practices, and expand the reach of the Act, directs the NLRB’s regional staff to begin enforcement of this novel, expansive interpretation of the law.

Read More >> NLRB General Counsel Issues Sweeping Challenge to Non-Compete Agreements

New York Department of Health Commissioner Recommends Repeal of the Healthcare Worker Vaccine Mandate

May 25, 2023

By Adam P. Mastroleo and Hannah K. Redmond

On Aug. 26, 2021, the New York State Department of Health (DOH) implemented an emergency regulation requiring covered health care employers, including hospitals, to “continuously” ensure that their “personnel” are fully vaccinated against COVID-19. See N.Y. Comp. Codes R. & Regs. Tit 10, § 2.61 (the DOH Mandate). The DOH Mandate stated that healthcare personnel were required to receive a first dose of a COVID-19 vaccine by Sept. 27, 2021 “absent receipt of an exemption as allowed” by the regulation. The DOH Commissioner permanently adopted the DOH Mandate in June 2022.

Read More >> New York Department of Health Commissioner Recommends Repeal of the Healthcare Worker Vaccine Mandate

New York State Considers Ban of Non-Compete Agreements in the Shadow of the FTC’s Proposed Nationwide Ban

May 25, 2023

By Bradley A. Hoppe and Kevin G. Cope

On the heels of the Federal Trade Commission’s (FTC) proposed nationwide ban on the use of non-competition agreements with employees and other “workers,” the New York State Senate and Assembly are poised to consider a ban on the use of non-competition agreements within New York State.

Read More >> New York State Considers Ban of Non-Compete Agreements in the Shadow of the FTC’s Proposed Nationwide Ban

NYC Council Passes Bill to Prohibit Height, Weight Discrimination

May 23, 2023

May 30, 2023 – UPDATE: On May 26, NYC Mayor Adams signed this bill into law, and it will go into effect 180 days later, on Nov. 22, 2023. Please feel free to reach out for steps your organization can take now to begin preparing.

On May 11, 2023, the New York City Council passed a bill which would prohibit height and weight discrimination within employment, housing and public accommodations under the New York City Human Rights Law (NYCHRL). As of this writing, the bill has been sent to Mayor Eric Adams for signature, who has 30 days to either sign the bill, take no action or veto it. If the mayor signs or takes no action, the bill becomes law and would take effect 180 days thereafter. In the event of a veto, the bill is sent back to the Council, which can override the veto with a two-thirds vote.

Read More >> NYC Council Passes Bill to Prohibit Height, Weight Discrimination

OFCCP Issues Updated Voluntary Self-Identification of Disability Form

May 1, 2023

By Christa Richer Cook

The Office of Federal Contract Compliance Programs (OFCCP) approved the use of a revised voluntary self-identification of disability form (Form CC-305) on April 25, 2023.

The recently released form includes updated language and additional examples of disabilities. Federal contractors and subcontractors have until July 25, 2023 to implement the new form into their applicant and employee systems and processes. Contractors are required to use this form in order to be in compliance with Section 503 of the Rehabilitation Act of 1973 and its implementing regulations.

Read More >> OFCCP Issues Updated Voluntary Self-Identification of Disability Form

Bureau of Consumer Financial Protection Updates its “Summary of Consumer Rights”

April 18, 2023

By Nicholas P. Jacobson

The Consumer Financial Protection Bureau (Bureau) has issued a final rule to make non-substantive corrections and updates to its Summary of Consumer Rights (Summary). Changes include correcting the Bureau’s mailing zip code, updating the names of Bureau divisions to reflect a recent organizational realignment and updating the contact information provided for other federal agencies. Changes were also made to update references to obsolete business types. The updated Summary will replace the previous version, which was published in October 2018.

Read More >> Bureau of Consumer Financial Protection Updates its “Summary of Consumer Rights”

New York Releases Final Revised Sexual Harassment Prevention Model Policy & Training

April 18, 2023

By Kristen E. Smith and Theresa E. Rusnak

On April 11, 2023, the New York State Department of Labor (DOL), in consultation with the New York State Division of Human Rights, released a revised sexual harassment prevention model policy. The policy is a final version of one that was first proposed on Jan. 12, 2023, and follows a period of public comment that ran through Feb. 11, 2023. At the same time, the DOL released a revised model sexual harassment training, which includes changes similar to those made to the policy.

Read More >> New York Releases Final Revised Sexual Harassment Prevention Model Policy & Training

Notice of Adoption for NYC Automated Employment Decision Tools Law and Deferred Enforcement Date

April 14, 2023

By Corinne E. Tierney

New York City’s Local Law 144 has received another update from the City’s Department of Consumer and Worker Protection (DCWP). As a reminder, the new law prohibits an employer or employment agency from using an automated employment decision tool in making an employment decision unless, prior to using the tool, the following requirements are met: (1) the tool has been subject to a bias audit within the last year; and (2) a summary of the results of the most recent bias audit and distribution data for the tool have been made publicly available on the employer or employment agency’s website. On Sept. 23, 2022, the DCWP proposed new rules to clarify the law. Please see our prior blog post for a more thorough summary of the law. On Dec. 23, 2022, the DCWP released a set of revised proposed rules which resulted in another public hearing on Jan. 23, 2023.

Read More >> Notice of Adoption for NYC Automated Employment Decision Tools Law and Deferred Enforcement Date

New York Proposes Update to WARN Act

April 5, 2023

By Colin M. Leonard

On March 29, 2023, the New York Department of Labor announced a proposal to update the New York Worker Adjustment and Retraining Notification (NY WARN) Act regulations to provide clarification and conform to statutory changes enacted in 2021. The public comment period for the proposed regulations will remain open until May 30, 2023.

The NY WARN Act, originally enacted in 2008, and the federal Worker Adjustment and Retraining Notification (WARN) require private employers to provide employees with written notice of impending mass layoffs, plant closures and relocations.

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NLRB General Counsel Releases Guidance on Board’s McLaren Macomb Decision

April 4, 2023

By Gianelle M. Duby

On Feb. 21, 2023, the National Labor Relations Board (the Board) ruled in McLaren Macomb, 372 NLRB No. 58, that the mere proffer of a draft severance agreement containing broad confidentiality and non-disparagement provisions violated the National Labor Relations Act (NLRA). You can read our prior blog post outlining the details of the Board’s decision here.

Read More >> NLRB General Counsel Releases Guidance on Board’s McLaren Macomb Decision

The Intersection of Employer Counterclaims and Retaliation: An Analysis of the Second Circuit’s Recent Decision in Kim v. Lee

March 28, 2023

By Kevin G. Cope, Stephen A. Sharkey, and Suzanne M. Messer

Employers are well aware of the risks a disgruntled employee may pose during their employment and even after their employment has ended. Sometimes, however, employers do not discover an employee’s unscrupulous behavior until after an employee has sued their employer for violation of one or more employee protection statutes, i.e., the New York Labor Law (NYLL), Fair Labor Standards Act (FLSA) or New York State Human Rights Law (NYSHRL). These statutes, however, also contain prohibitions against retaliation, leading many employers to question whether they could or should countersue an employee for tortious conduct and potentially risk a claim for retaliation. The Second Circuit in Kim v. Lee, 2023 WL 2317248, 22-61 (2d Cir. March 2, 2023), shed some light on this topic and held that an employer’s counterclaim is retaliatory when it is baseless or frivolous. The Court did not, however, decide whether non-frivolous counterclaims might support a valid retaliation claim.

Read More >> The Intersection of Employer Counterclaims and Retaliation: An Analysis of the Second Circuit’s Recent Decision in Kim v. Lee